FAQ

Q. Through DNA Testing, it was discovered that the child my wife gave birth to a few months ago is not mine, but another man’s. I am wondering, because of her obvious act of adultery, in a divorce, would or could I still be required to pay her alimony despite her infidelity?

A. Technically, marital fault can still be considered for purposes of alimony. However, as the esteemed panel has already stated, in most cases it will have little, if any, impact. An angle you may want to pursue is marital lifestyle and what her act of adultery did or did not contribute to such lifestyle. Also, any child support she should receive from the father may (or may not, depending upon the incidental benefit to her) help to offset some of her current living expenses. You should DEFINITELY contact a lawyer to explore these, and the other important factors considered in divorce cases.

Q. My daughter is 13 and wants to live with me out of state. I share joint custody with my ex-husband and he is the residential parent. At what age and under what circumstances will the court consider my daughter’s preferences? I’m trying to find NJ resources but haven’t come up with much.

A. There are three issues that appear to be implicated in your question. I will leave the "age" issue for last. Your case is really about custody, since the child’s father has residential custody. Your application to the Court would be two-fold, to change residential custody, and to remove the child to a different state. In either situation, as Jef Henninger stated, the child’s wishes would be considered, but not absolutely control. The removal case falls under a series of cases under O’Connor v. O’Connor (as opposed to Baures v. Lewis – the distinction is actually set forth right in the Baures case), as you do share custody and are seeking to move from the state.

Q. There is nothing in our current order that relates to holidays. Christmas falls on my day(s) with my son. Does the holiday standard supersede that order? Thanksgiving fell on her day(s)and I had no time with my son. I have him from Sunday 2:00PM thru Tuesday 2:00PM weekly.

A. Generally, holiday parenting time will supersede regular visitation. However, without a formal order on holiday time, a noncustodial parent is often at the whim of the other parent. There is nothing a police department can do (for example) to enforce a holiday schedule if it is not in an order.

If you cannot get an agreement with the other parent in writing, you should go back to court by way of a motion for an order fixing holiday parenting time.

Q. My ex wife currently has primary custody of my 3 kids. My eldest is male, 17 years old and would like to come live with me. What are his/my rights?

A. In all likelihood, your son would be able to live with you. The only real issue would be the potential impact it may have on the other two children. That is something you should be wary of. Make sure you advise your ex well in advance, in writing.

Q. My son is 9. I was never married to his father, however his father has visitation with him every other weekend. He doesn’t want to go with him at all. He cries so hard it makes him sick. Does he have any rights?

A. At the age of 9 your son does not have the independent authority to discontinue visits with his dad. However, if there is a reason that he does not want to go that impacts upon his best interests, you can assert such reasons on his behalf. I would suggest that you seek a mental health professional to become involved, asking his father to participate, to address the situation in an attempt to find a solution (or cause) to this behavior, prior to any legal effort to stop the visits. As always, if you have any reason to believe that your son may be in danger in any way, you should immediately contact an attorney (or the police) to seek more specific advice/protection.

Q. If a divorced couple have joint legal custody of the children, Can one parent take the kids out of the state even for a short period of time without having the consent of the other parent?

A. As long as the parent does it during his or her own parenting time, the technical answer is yes, since the removal statute does not apply to a visit outside of the state. However, the child’s best interests must still be served in that the other parent should be notified and other circumstances surrounding the child should be considered.

Q. My husband told me he wanted a divorce in July after 20 years of marriage. I had reason to believe he was having an affair, by text messages my daughter read on his phone. He denies it and says they are only friends.

He has since taken a job in FL and moved 3 weeks ago. Last week, he mailed me his cell phone because he got a new one at work and mine wasn’t working.

New number, but approximately 250 text messages between him and the same woman were left on the phone. Most were "love you" "miss you" and a lot of sex talk and how much they miss spending so much time together. He brought her a ticket to go see him this week. I also have all of his cell phone bills from May through September. Hundreds of calls between them. My question is, is that proof of adultery.

A. The proofs that you have suggest an affair and would probably stand up if ever challenged (as unlikely as that may be). What really matters: did your husband dissipate marital assets in support of this affair? That is really the issue when dealing with adultery as the cause of action usually pleaded along with adultery is extreme mental cruelty, which his actions, even if not adulterous, clearly constitute.

Q. My child support payment is up for review. My ex-wife currently provides health insurance for my daughter. She is paying an exorbitant amount for her coverage. I can provide health insurance equal to her current plan through my current wifes employment at no additional cost. This would substantially decrease my child support payment from what she is asking for. If my daughter can get coverage at no additional cost can I insist on providing that coverage? I live out of state and the additional savings would make it easier for my traveling expenses. I travel from SC to NJ every 6 – 8 weeks.

A. The answer to your question is MOST LIKELY. There are a few things the court will consider: first, will the cost for health insurance coverage for your ex wife actually go down (ie. can she switch from parent child to individual); next, will you agree to allow her to be designated as the insurance contact (by executing a QMCSO – qualified medical child support order)? This document allows her to deal with the insurance company and get refunds directly – – seeing as though you are out of state, this makes a lot of sense. I practice statewide, if you have a more specific question, please email me at flarocca@divorcelawnj.com.

Q. My ex-husband owes over 10,000 dollars in back child support. He has no relationship with my son who is 10 and wants to sign over all parental rights.  I would be more than happy to sign anything to keep him away from my son.  How do I go about getting the paperwork for him to sign?  Would he still have to pay back child support even if parental rights are terminated?

A. Unfortunately, unless there is another person ready to adopt your son as a co-parent, you cannot terminate the parental rights of your ex-husband by consent. The child has the right to receive support from the parent and the parent has the obligation of such support. The logic is that in the unfortunate situation of your death, the child should not become an orphan (also, 8 years from now the child can seek college expenses from his father).